Booth v. State

McAULIFFE, Judge. John E. Booth was convicted in the Circuit Court for Baltimore City of the premeditated murder and armed robbery of James Edward (“Pie”) Ross, and was sentenced by ³¹⁶ Judge Martin Greenfeld to consecutive terms of life and twenty years imprisonment. Booth appealed to the Court of Special Appeals, contending that the trial judge erred in admitting hearsay evidence, and in instructing the jury. The Court of Special Appeals affirmed, Booth v. State, 62 Md.App. 26 , 488 A.2d 195 (1985), and we granted certiorari to consider the question of the admissibility of evidence under the present sense impression exception to the hearsay rule.

At trial, the State proffered evidence that Regina Harrison telephoned Ross between 5:30 and 6:00 p.m. on the day of his murder. Harrison testified that Ross said he was getting ready to prepare dinner and was going to ask his company, a girl named Brenda, to leave. Harrison said she then heard the door at Ross’ home open and questioned Ross as to who was there. Ross told Harrison that Brenda was talking to “some guy” behind the door.

According to Harrison, the general tone of the conversation was normal and Ross did not sound nervous or anxious. Booth objected to the testimony of Harrison on the ground that it was impermissible hearsay. The trial judge admitted the testimony, concluding that it fell within the present sense impression exception to the hearsay rule. 1 Judge Greenfeld said in his well considered oral opinion: It seems to me that the present sense impression has as much reliability as the excited utterance exception or res gestae exception as it is sometimes called, and may even be more accurate, since the Maryland Court of Appeals permits excited utterances to be admitted under the proper circumstances as an exception to the hearsay rule. I see no reason why present sense impression should not also be admitted if reliability exists.

So in the general ³¹⁷ sense I find that reliability does exist here because there would be no reason for Mr. Ross to inaccurately state to Miss Harrison over the telephone that Brenda was there or that she was talking to somebody at the door. And, of course, the jury can evaluate her demeanor and the accuracy of, and reliability, and trustworthiness of the statement themselves. Booth argues that Maryland should not adopt the present sense impression exception because the mere contemporaneity of a statement and an allegedly perceived event does not establish trustworthiness. Alternatively, Booth contends that even if the exception is adopted this testimony should not be admitted because there was no corroboration by an “equally percipient witness.” The present sense impression exception has its origins in what was known as the “res gestae” exception to the hearsay rule. 2 The term “res gestae” came into usage in discussion of admissibility of declarations in the early 1800’s.

McCormick on Evidence § 288, at 686 (2d ed. E. Cleary 1972); 6 J. Wigmore, Evidence § 1767, at 253-59 (Chadbourn Rev.1976). As Professor McCormick points out, the term is more generic than particular and includes within its definition four distinct exceptions: declarations of present bodily condition; declarations of present mental states and emotions; excited utterances; and declarations of present sense impressions. McCormick on Evidence, supra, § 288, at 686.

Although the term res gestae is now condemned in academic circles, the exceptions included within its definition are recognized by most scholars. 3 ³¹⁸ The present sense impression exception was first defined by the evidence scholar, James Bradley Thayer, when he reviewed res gestae cases in 1881. 4 Thayer reported what he considered to be a longstanding rule of admissibility which grew out of the res gestae concept: The exception to the hearsay rule which is now mentioned takes notice of one of these strong elements of authenticity, contemporaneousness; it deals, however, not with memoranda signed by the parties, but with statements, oral or written, made by those present when a thing took place, made about it, and importing what is present at the very time,—present, either in itself or in some fresh indications of it, to the faculties of the witness as well as of the declarant. # * $ # * * The leading notion in the doctrine ... seems to have been that of withdrawing from the operation of the hearsay rule declarations of fact which were very near in time to that which they tended to prove, fill out, or illustrate,—being at the same time not narrative, but ³¹⁹ importing what was then present or but just gone by, and so was open, either immediately or in the indications of it, to the observation of the witness who testifies to the declaration, and who can be cross-examined as to these indications. Thayer, Bedingfield’s Case—Declarations as a Part of the Res Gesta, (Part III) 15 Am.L.Rev. 71, 83, 107 (1881). 5 However, one of Thayer’s most influential students, Dean Wigmore, in his 1904 evidence treatise refused to recognize the present sense impression exception, claiming that contemporaneousness of event and descriptive statement, without more, did not guarantee the statement’s trustworthiness. 6 J. Wigmore, Evidence § 1747, at 195-98 (Chadbourn Rev.1976). Thayer’s formulation of the present sense impression exception was revived by Edmund Morgan. Professor Morgan pointed out: A statement by a person as to external events then and there being perceived by his senses is worthy of credence for two reasons.

First, it is in essence a declaration of a presently existing state of mind, for it is nothing more than an assertion of his presently existing sense impressions. As such it has the quality of spontaneity____ Second, since the statement is contemporaneous with the ³²⁰ event, it is made at the place of the event. Consequently the event is open to perception by the senses of the person to whom the declaration is made and by whom it is usually reported on the witness stand. The witness is subject to cross-examination concerning that event as well as the fact and content of the utterance, so that the extra-judicial, statement does not depend solely upon the credit of the declarant.

Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 , 236 (1922). Currently, a present sense impression is excepted from the operation of the hearsay rule by the Federal Rules of Evidence, and by a majority of states. Additionally, this exception is recognized by the Model Code of Evidence, Rule 512(a), and by the Uniform Rules of Evidence (1974), Rule 803(1). Fed.R.Evid. 803(1) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression.

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. The underlying theory of this exception is that “substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.” Advisory Committee Note, Fed.R.Evid. 803(1). The Note further states that “in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable.” Although the Note does not state that the witness must be the declarant, it indicates that “if the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement.” Finally, the Note limits the permissible subject matter under the exception to a “description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther.” ³²¹ At least twenty-eight states recognize this exception to the hearsay rule in their codified evidence codes, most of which have been patterned after the Federal Rules of Evidence. See, e.g., Alaska R.Evid. 803(1) (eff. 1979); Ariz.

R.Evid. 803(1) (eff. 1977); Ark.R.Evid. 803(1) (eff. 1976); Cal.Evid.Code § 1241 (eff. 1967); Colo.R.Evid. 803(1) (eff. 1980); Fla.Evid.Code § 90.803(1) (eff. 1979); Hawaii R.Evid. 803(b)(1) (eff. 1981); Idaho R.Evid. 803(1) (eff. 1985); Iowa R.Evid. 803(1) (eff. 1985); Kan.Code Civ.P. § 60-460(d)(l) (eff. 1963); Me.R.Evid. 803(1) (eff. 1976); Mont.R.Evid. 803(1) (eff. 1977); Nev.Rev.Stat. tit. 4, § 51.085 (eff. 1971); N.H.R.Evid. 803(1) (eff. 1985); (N.J.R.Evid. 63(4)(a) (eff. 1967); N.M.R.Evid. 803(1) (eff. 1976); N.C.R.Evid. 803(1) (eff. 1984); N.D.R.Evid. 803(1) (eff. 1977); Ohio R.Evid. 803(1) (eff. 1980); Okla.Evid.Code § 2803(1) (eff. 1978); S.D. R.Evid. § 19-16-5 (eff. 1978); Tex.R.Evid. 803(1) (eff. 1983); Utah R.Evid. 803(1) (eff. 1983); Vt.R.Evid. 803(1) (eff. 1983); Wash.R.Evid. 803(a)(1) (eff. 1979); W.Va.R.Evid. 803(1) (eff. 1985); Wis.R.Evid. 908.03(1) (eff. 1974); Wyo.R.Evid. 803(1) (eff. 1978). Colorado’s rule requires precise contemporaneity and deletes the words “or immediately thereafter” found in the Federal Rule. Florida and Ohio add language that a present sense impression is admissible unless the statement is made under circumstances that indicate its lack of trustworthiness. Fla.Evid.Code § 90.803(1); Ohio R.Evid. 803(1).

The Ohio Staff Note explains that the additional language serves to narrow the availability of the exception by vesting discretion in the trial judge. Most commentators, with the notable exception of Dean Wigmore, recognize the present sense impression exception. The exception was approved in McCormick on Evidence § 298, at 860 (3d ed. E. Cleary 1984): Although [present sense impression] statements lack whatever assurance of reliability there is in the effect of an exciting event, other factors offer safeguards.

First, since the report concerns observations being made at the time of the statement it is safe from any error caused by a defect of the declarant’s memory. Second, a require ³²² ment that the statement be made contemporaneously with the observation means that there will be little or no time for calculated misstatement. Third, the statement will usually have been made to a third person (the witness who subsequently testifies to it) who, being present at the ■time and scene of the observation, will probably have an opportunity to observe the situation himself and thus provide a check on the accuracy of the declarant’s statement, i.e. furnish corroboration. Moreover, since the declarant himself will often be available for cross-examination, his credibility will be subject to substantial verification before the trier of fact.

(Footnotes omitted.) In J. Weinstein & M. Berger, Weinstein’s Evidence paragraph 803(1)[01] (1985), the Federal Rule was explained as follows: Underlying Rule 803(1) is the assumption that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1) the statement being simultaneous with the event, there is no memory problem; (2) there is little or no time for calculated misstatement, and (3) the statement is usually made to one who has equal opportunity to observe and check misstatements. This exception has been viewed with favor by those who fear that excitement—such as that required by the excited utterance exception—operates to impair the accuracy of perception. The exception is useful in admitting statements uttered minutes before the event in question and before the declarant was aware that something startling was about to happen. (Footnotes omitted.) D. Binder, Hearsay Handbook 89 (2d ed. 1983, 1985 Cum.Supp.) said: An out-of-court assertion that describes or explains a present sense impression is excepted to the hearsay rule in the federal courts and in an increasing number of state courts, regardless of the availability of declarant at trial____ ³²³ Declarant need not be excited or otherwise emotionally affected by the event or condition.

The trustworthiness of the assertion arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory. If you turn on your radio during a baseball game, you will be inundated by present sense impressions. The utterances of the sportscaster describing and explaining what he observes on the playing field as it is taking place are quintessential present sense impressions.

But the sportcaster’s between-innings or post-game analysis would not qualify for this hearsay exception, for lack of contemporaneity. If a present sense impression is made under stress of excitement from the event or condition that it describes or explains, then it overlaps with the exception for an excited utterance (Exception 2). This is often the case. For example, if a sportscaster is excited by the sporting event that he is watching, his play-by-play description qualifies both as a present sense impression and an excited utterance.

If he is bored by it, his description qualifies only as a present sense impression. Maryland has long recognized a “res gestae” exception to the hearsay rule. Wright v. State, 88 Md. 705 , 41 A. 1060 (1898). See also Mouzone v. State, 294 Md. 692 , 452 A.2d 661 (1982).

Adhering to the older usage of res gestae, Maryland has firmly endorsed the analogous “excited utterance” exception. See, e.g., Mouzone v. State, supra; Stevens v. State, 232 Md. 33 , 192 A.2d 73 , cert. denied, 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963); Grier v. Rosenberg, 213 Md. 248 , 131 A.2d 737 (1957); Tittlebaum v. Penna. R. Co., 167 Md. 397 , 174 A. 89 (1934); Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928); Wright v. State, supra. See also Moore v. State, 26 Md.App. 556 , 338 A.2d 344 (1975); Smith v. State, 6 Md.App. 581 , 252 A.2d 277 (1969). ³²⁴ As observed by the Advisory Committee to the Federal Rules, the “excited utterance” and “present sense impression” exceptions “overlap, though based on somewhat different theories.” Advisory Committee Note, Fed. R.Evid. 803(1).

The underlying rationale of the two exceptions are similar, i.e., both preserve the benefit of spontaniety in the narrow span of time before a declarant has an opportunity to reflect and fabricate. We conclude that the “present sense impression” exception to the hearsay rule rests upon a firm foundation of trustworthiness, and we adopt it in the form in which it appears at Fed.R.Evid. 803(1). We turn to a consideration of practical problems that may be encountered in the application of this exception. Initially, we consider the question of requisite spontaneity.

Although statements offered under this exception will usually be those made at the time an event is being perceived, we recognize that precise contemporaneity is not always possible, and at times there may be a slight delay in converting observations into speech. However, because the presumed reliability of a statement of present sense impression flows from the fact of spontaneity, the time interval between observation and utterance must be very short. The appropriate inquiry is whether, considering the surrounding circumstances, sufficient time elapsed to have permitted reflective thought. See McCormick on Evidence § 298, at 862 (3d ed.

E. Cleary 1984). In the words of Professor Jon Waltz, “absent some special corroborative circumstance, there should be no delay beyond an acceptable hiatus between perception and the cerebellum's construction of an uncalculated verbal description.” Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 Iowa L.Rev. 869, 880 (1981). Next, we consider the extent to which there must be proof that the declarant is speaking from personal knowledge before the statement may be admitted. Al ³²⁵ though the declarant need not have been a participant in the perceived event, it is clear that the declarant must speak from personal knowledge, i.e., the declarant’s own sensory perceptions.

The more difficult question involves the quantity and quality of evidence required to demonstrate the existence of the requisite personal knowledge. We conclude that in some instances the content of the statement may itself be sufficient to demonstrate that it is more likely than not the product of personal perception, and in other instances extrinsic evidence may be required to satisfy this threshold requirement of admissibility. 6 Identification of the declarant, while often helpful in establishing that he or she was a percipient witness, is not a condition of admissibility. When the statement itself, or other circumstantial evidence demonstrates the percipiency of a declarant, whether identified or unidentified, this condition of competency is met. An additional problem often encountered in the consideration of this exception to the hearsay rule is the tendency of